THE FRENCH VETO RESTRAINT PROPOSAL: MAKING IT WORK
Panel Presentation by Professor the Hon Gareth Evans to International Conference on
Limiting the Use of Veto at the UN Security Council in the Case of Mass Atrocities,
Sciences Po, Paris, 21 January 2015
If one is serious about the international community’s responsibility to protect those at risk of
mass atrocity crimes, one has to be serious about “capricious use of the veto, or threat of its
use … in cases where quick and decisive action is needed to stop or avert a significant
humanitarian crisis”. That was the view of the International Commission on Intervention and
State Sovereignty (ICISS) which I co-chaired in 2001, and we reported accordingly in our
final report.1 Having been stimulated to focus on the issue, I am happy to acknowledge, by
the path-breaking proposal for a voluntary ‘code of conduct’ of Hubert Vedrine at a
roundtable here in Paris earlier that year, we recommended that:
The Permanent Five members of the Security Council should agree not to apply their
veto power, in matters where there vital state interests are not involved, to obstruct the
passage of resolutions authorizing military intervention for human protection
purposes for which there is otherwise majority support.2
This was not the first attempt in the UN’s history to constrain or limit in some specifically
defined way the P5’s veto power. That honour belongs to my Australian predecessor H.V.
Evatt, the first President of the General Assembly, who argued, passionately but
unsuccessfully, at the 1945 San Francisco Conference that the veto should be excluded from
all arrangements relating to the peaceful settlement of disputes.3 But it was the first time the
idea of the responsibility not to veto in the case of mass atrocities was put publicly on the
table.
Since then the idea has developed plenty of further traction at the governmental level, albeit
not so far securing the passage of any UN resolution or P5 commitment. It has been taken up
by the High Level Panel on Threats Challenges and Change in 2004, of which I was also a
member4; the ‘S5’ group of small states in 2006 and again in 20125, and the 22-member
Accountability, Coherence and Transparency (ACT) Group, established in 2013 to follow up
its work;6 the bipartisan US Albright-Cohen Genocide Prevention Task Force in 20087; Ban
1
International Commission on Intervention and State Sovereignty (ICISS), Gareth Evans & Mohamed Sahnoun Co-chairs,
The Responsibility to Protect (Ottawa: IDRC, 2001) , paragraphs 6.19-21
2 Ibid, p. XIII.
3 Ariela Blatter and Paul D. Williams, The Responsibility Not To Veto, Global Responsibility to Protect 3 (2011) p.306
4 Whose recommendation was that veto “use be limited to where vital interests are genuinely at stake” and that “the
permanent members, in their individual capacities,…pledge themselves to refrain from the use of the veto in cases of largescale human rights abuses”: UN Secretary-General’s High-Level Panel on Threats, Challenges and Change, A More Secure
World: Our Shared Responsibility (New York: UN, 2004), paragraph 256.
5 Whose recommendation was that “no permanent member should cast a [veto] in the event of genocide, crimes against
humanity and serious violations of international humanitarian law”: Draft resolution A/60/L.49, 17 March 2006, Annex
paragraph 14 (sponsored by Costa Rica, Jordan, Liechtenstein, Singapore and Switzerland); see also draft resolution
A/66/L.42/Rev.2, 15 May 2012, Annex paragraph 20.
6 Led by Liechtenstein and Switzerland, like S5, to focus on Security Council working methods: see
http://www.centerforunreform.org/?q=node/541
7 Which recommended in 2008 that a principal aim of US policy in the Security Council “should be informal, voluntary
mutual restraint in the use or threat of a veto in cases involving ongoing or imminent mass atrocities. The P-5 should agree
that unless three permanent members were to agree to veto a given resolution, all five would abstain or support it. This
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Ki-Moon’s report to the General Assembly in 2009 on Implementing the Responsibility to
Protect8; and of course now the new French initiative, announced by President Hollande in
the General Assembly on 24 September 20139 with the detail being fleshed out by Foreign
Minister Fabius in the New York Times a few days later. 10
So how do we go about converting these prescriptions, for which so much international
momentum has already developed, into practical reality? What will it take to persuade the
other four P5 members – all of whom have so far expressed either caution or outright
opposition – to accept the French proposal, or something like it? How can we achieve the
core objective of significantly raising the political cost of a permanent member capriciously
using its veto in a mass atrocity case?
I think there are three sets of conditions – constituting ten specific factors in all - which will
need to be satisfied: first, what might be described as general scene-setting conditions,
creating a general sense of international pressure for change; second, clarifying conditions, or
modalities, identifying clearly what P5 are, and are not, being asked to sign up to; and third,
protective conditions, giving P5 members some sense of reassurance that they will not be
doing themselves any harm by agreeing to voluntary restraint.
Scene-setting conditions
1. General international agreement (not the same as unanimous consensus!) that there is
a powerful case to be made – both ethically, and in terms of the proper discharge of
the Security Council’s functions under Article 24 of the UN Charter – for the veto not
being used to stop effective Council action for which there is otherwise the necessary
nine-vote majority in favour. Evidence of such agreement has been steadily
accumulating with 65 different states from all regions of the world so far going on
record since 2008 in various UN forums in support of veto restraint.11
2. General international agreement that the issue is real, in the sense that lack of veto
restraint is actually inhibiting effective Security Council action for which there is
otherwise the necessary majority support. There should not be much doubt about this
given that there have been six clear cases since the R2P norm was embraced in 2005
should apply, in particular, to resolutions instituting and/or authorizing peace operations in situations where mass atrocities
or genocide are imminent or underway”: Genocide Prevention Task Force (GPTF), Preventing Genocide: A Blueprint for
U.S. Policymakers (Washington DC: The US Holocaust Memorial Museum, The American Academy of Diplomacy, and the
US Institute of Peace, 2008), p.106.
8 Which urged the P5 “to refrain from employing or threatening to employ the veto in situations of manifest failure to meet
obligations relating to the responsibility to protect, as defined in paragraph 139 of the [2005 World Summit]
Outcome[Document]”: Report of the UN Secretary-General, Implementing the Responsibility to Protect (UN document
A/63/677, 12 January 2009), paragraph 61.
9 Who proposed that “a code of good conduct be defined by the permanent members of the Security Council, and that in the
event of a mass crime they can decide to collectively renounce their veto powers”: http://gadebate.un.org/68/france .
10 “The Charter would not be amended and the change would be implemented through a mutual commitment from the
permanent members. In concrete terms, if the Security Council were required to make a decision with regard to a mass
crime, the permanent members would agree to suspend their right to veto. The criteria for implementation would be simple:
at the request of at least 50 member states, the United Nations secretary general would be called upon to determine the
nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply. To be realistically
applicable, this code would exclude cases where the vital national interests of a permanent member of the Council were at
stake.”: Laurent Fabius, “A Call for Self-Restraint at the U.N.” The New York Times, 4 October 2013.
11
See References on the need for veto restraint by the UN Security Council in mass atrocity situations, Global Centre for the
Responsibility to Protect at http://www.globalr2p.org/media/files/veto-restraint-references.pdf
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when the veto has been employed to block resolutions dealing with situations that
could reasonably be described as mass atrocity crimes, 12 quite apart from the “silent
veto” cases (the most familiar of which being Kosovo in 1999) where a veto has its
effect simply through being threatened, and never actually exercised.
3. General international agreement that a purely voluntary commitment is worth having.
Clearly there is no reasonable prospect for the indefinitely foreseeable of formal
Charter amendment on any issue remotely as sensitive as the veto, and the only option
is some form of gentleman’s agreement. While I cannot help but recall in this context
the remark of a former Australian Prime Minister, Ben Chifley, that “the trouble with
gentleman’s agreements is that there aren’t enough bloody gentlemen”, there does
seem to be already a large measure of acceptance that, for all its obvious weaknesses,
voluntary restraint would be a big step forward.
Clarifying conditions
4. Agreement on an initiating mechanism. Nothing more formal is here required than a
document agreed to by all members of the P5, publicly released, and tabled for
information,in one form or another, in the Security Council and General Assembly.
5. Agreement on how the veto restraint agreement should be described. The object here
should be to avoid any language that might be seen by any of the P5 as over-formal or
over-restrictive, which might be the case even for the familiar expression “code of
conduct”. My instinct would be simply label the document “Agreement relating to the
Use of the Veto”.
6. Agreement on the kinds of cases to which the veto restraint agreement applies. The
2013 Hollande/Fabius language requires simply “a mass crime”; other possible
formulations are the High Level Panel’s “cases of large-scale human rights abuses”,
the S5’s “genocide, crimes against humanity and serious violations of international
humanitarian law”, the US Genocide Task Force’s “cases involving ongoing or
imminent mass atrocities”; and Secretary-General Ban Ki-Moon’s “situations of
manifest failure to meet obligations relating to the responsibility to protect, as defined
in para 139 [of the 2005 World Summit Outcome Document]”.
Recognizing how hard-fought and hard-won was the argument about the reach of R2P
in the lead-up to the World Summit, my strong instinct would be to ensure that the
language used resonates with the “four crimes” language used in 2005 rather than use
any terminology with potentially broader application. That does not necessarily mean
replicating the exact 2005 words. ‘Ethnic cleansing’ is not a separately recognised
crime, but is rather a way or carrying out both ‘genocide’ and ‘crimes against
humanity’ and need not be specifically spelt out. In the case of war crimes, which can
technically be committed by just one individual against another, it would be desirable
12
See UN draft resolutions S/2014/348, S/2012/538, S/2012/77, S/2011/612 (Middle East/Syria), S/2008/447 (Zimbabwe),
and S/2007/14 (Myanmar).
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to make explicit what is presently implicit, that these need to be on a larger scale (as
genocide and other crimes against humanity including ethnic cleansing must be as a
matter of law).
It would also probably be desirable to limit the veto restraint agreement to situations
where there is some real immediacy and urgency about the situation. Bringing these
thoughts together, ossible language might, accordingly, be “situations where
populations are experiencing, or at imminent risk of, genocide, crimes against
humanity or major war crimes”.
7. Agreement on a trigger process for determining when an appropriate case for
applying the veto restraint agreement has arisen. To avoid unproductive and timeconsuming procedural wrangling, it would be highly desirable, as the French proposal
recognizes, to have some trigger mechanism outside the P5 itself to determine when a
case has arisen that requires the application of veto restraint. France proposes that “at
the request of at least 50 member states, the United Nations Secretary-General would
be called upon to determine the nature of the crime. Once he had delivered his
opinion, the code of conduct would immediately apply.” Other external trigger
mechanisms that have been proposed over the years include certification that the case
is an appropriate one by the International Court of Justice, a two-thirds majority of the
General Assembly, the High Commissioner for Human Rights, the Secretary
General’s Special Advisers on the Prevention of Genocide and R2P, and regional
organizations.
The overwhelming need here, given that many lives may be immediately at stake, is
for a process which is speedy (which determination by the ICJ manifestly would not
be), but at the same time gives P5 members some confidence that an objective
determination is being made by individuals or an institution in which they have trust,
and also provides some evidence that the issue is one giving concern to a wide crosssection of the international community. My instinct here is that the best solution,
meeting these needs, may be to require a double trigger, with the relevant process
requiring:
(a) a certification by the Office of the UN Secretary General’s Special Advisers on
the Prevention of Genocide and R2P, which has the resources, expertise and
credibility to make a quick objective determination of the nature and gravity of the
situation, that the situation is a proper one for application of veto restraint (for
example, if my own suggested language were to apply, the certification would be
that a particular situation involves a population “experiencing, or at imminent risk
of, genocide, crimes against humanity or major war crimes”); and
(b) a signed statement from at least 50 members of the General Assembly (including
at least five members from each of the five recognized regional groups (African,
Asia-Pacific, Eastern European, Latin American and Caribbean) and Western
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European and Others) that they believe the situation in question is of concern and
satisfies the veto restraint requirement.
If it were thought necessary to have a further formal mechanism for bringing these
statements to the Council’s attention, that role could be played by the SecretaryGeneral, if necessary exercising his authority under Article 99 of the Charter. But it
may not be wise to give the Secretary-General a direct ‘certification’, as distinct from
transmission-mechanism, role. Given the Secretary-General’s ongoing role as a
diplomatic broker, it might be preferable to avoid putting him or her in the position of
making a quasi-judicial determination, as the present French proposal would require.
8. Agreement on the kinds of Security Council action to which the agreement applies. It
would be possible to limit veto restraint just to resolutions “authorizing military
intervention for human protection purposes” as ICISS originally proposed, or as the
US Genocide Prevention Task Force put it a little more broadly, “resolutions
instituting and/or authorizing peace operations in situations where mass atrocities or
genocide are imminent or underway”. But experience, makes clear that vetoes cast or
threatened against resolutions merely condemning particular behaviour, or
foreshadowing the application of measures falling well short of military coercion, can
have a devastating practical impact: the failure of the Security Council for so long to
even condemn what was happening in Syria undoubtedly helped to precipitate and
prolong the carnage that we have there witnessed. My instinct here is that the
agreement should apply to any Security Council action at all taken in response to
situations where populations are experiencing or at imminent risk of genocide, crimes
against humanity or major war crimes.
Protective conditions
9. Agreement that a P5 member is not bound by the veto restraint agreement in certain
circumstances. The French proposal is that restraint not apply “where the vital
national interests of a permanent member of the Council were at stake”, mirroring
escape-route language in the original ICISS and High Level Panel reports. While
having no obvious ethical appeal, it is probably, as M. Fabius acknowledges,
necessary as a matter of political realism – and probably more acceptable to potential
hold-outs on the P5 than alternative proposals like that of the US Genocide Prevention
Task Force that there be no veto “unless three permanent members were to agree to
veto”. The consolation is that not many real-world cases are likely to lend themselves
to credible claims of this kind: it is difficult, for example, to see how the atrocityrelated resolutions on Myanmar, Zimbabwe, and Syria vetoed in recent years by
China and Russia could possibly have persuaded anyone else that they put at risk the
“vital national interests” of either, even taking into account the realpolitik of
Moscow’s political and military relationship with the Assad regime in Syria
10. Agreement to review the veto restraint agreement after experience of its operation. A
further condition that might offer some element of comfort to reluctant P5 members
would be to provide that their agreement is subject to review after five or ten years –
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perhaps through the application of a sunset clause, which would mean it lapsed unless
renewed. Again this has no obvious ethical, but may have some political, appeal.
Next Steps
In taking its proposal forward – as I hope very much it will – I think the French Government
needs to do four things, the first three of which at least are perfectly straightforward:
(a) Draw up a detailed proposal fully spelling out its preferred position on what I have
described as the clarifying and protective positions, and developing, circulating and
advocating in all appropriate forums, full arguments in support. There may be some
temptation to avoid commitment to particular positions as long as possible, to avoid
adverse reactions to particular language, but the general idea has been on the table for
15 years now, and if real progress is to be made in the context of the UN’s 70 th
anniversary in 2014, it would be desirable to sharpen the debate as soon as possible.
(b) Develop and advocate detailed arguments in support of what I described as the scenesetting conditions, ie. that there is a strong ethical case for veto restraint, that the
practical need for it is real, and that a voluntary agreement is worth having despite the
risk of back-sliding. A systematic attempt should be made to get a very substantial
majority of UN member states to make the same kind of supportive statement that 65
already have: it creates an environment of international pressure which reluctant P5
members will find hard to completely ignore.
(c) Develop further specific arguments which may have some self-interest appeal to P5
members. One such argument, made originally by ICISS in the context of atrocity
crimes but also subsequently by others in the context of Security Council membership
reform (admittedly in both cases so far to little effect), that if the P5 takes steps which
undermine the credibility of the Council, and make it seem less relevant to the critical
issues of the day “they can only expect that the Council will diminish in significance,
stature and authority”13
(d) Recognize what went wrong with the Security Council decision-making process in the
case of Libya in 2011, when initial consensus disappeared in the face of what was
seen as over-reach by the P314 in translating, without appropriate further consideration
in the Council, a narrow civilian-protection mandate into a broad ranging regimechange one, with this an important part of the explanation for the Council’s
subsequent paralysis over Libya. And accept in that context the need to adopt some
variation of the “Responsibility While Protecting” proposal originally made by Brazil,
which would require at least informal agreement on the way use-of-force mandates
are initially agreed and then monitored and reviewed by the Council during their
lifetime.15
13
ICISS, paragraph 6.22
France, the UK and US (since then widely referred to around UN corridors by the alternative acronym FUKUS)
15
See for example Gareth Evans, Responsibility While Protecting, Project Syndicate January 2012,
http://www.gevans.org/opeds/oped118.html
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That last item on the list is rather less straightforward, and may be not quite so palatable
for France, any more than it will be for the US or UK. But I think it will be crucial to the
restoration of any kind of consensus on the Security Council as to how to handle in future
the hardest mass atrocity crime cases. And I certainly think that some show of contrition
on this front will be crucial if the two likely most reluctant members of the P5 on the veto
restraint issue are to have any chance at all of embracing the cause – hugely attractive as
that cause is to all of us here and, I believe, the overwhelming majority of the
international community.
Building political momentum for major change of this kind is never easy. It requires a
good,clear proposal; good, clear arguments in support of it; political sensitivity to
opponents’ positions, but not to the point of capitulation on key issues; creativity, not
least in meeting concerns without capitulation; a thick skin; and stamina. France is
abundantly capable of delivering on all these fronts, and it is enormously to be hoped that
this enterprise succeeds.
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